portabello by proindal introduced by Mri

Hi all

anybody paid deposits on a development called portabello by a developer called proindal, we were introduced to them by MRI, The development was due to complete march 2011, but hasn`t even started yet, we are in constant contact with our solicitor and our last update said that with the financial situation as it is at the moment the developer is still  trying to raise funds to start but, he is giving people the option to switch your deposits to other developments which he has already completed but at a discount.We have a bankers quarantee in place which is all in order, so we aren`t concerned if it doesn`t go ahead.As we were introduced to this development by MRI, we have recently been contacted by them from their Marbella office, offering of a meeting with their directors to see if they can do anything to help with the situation of Portabello. Have heard many rumours about the reason for the meeting and what goes on but not heard anything from people who have actually met with them, therefore am wondering if there is anybody out there who has acual first hand info on this matter, and can also shed any further light on the developers situation

           many thanks

            richard

      ,

I'm sure MRI now DCC will 'help you' by suggesting you invest in another developement at a higher price of course, and that the original developement cannot be completed.

All with Bank Guarantees under those circumnstances can apply for the refund before the Bank or Insurance Company, as the works have not started on time.

The Aval Bancario (Bank Guarantee) or Insurance Contract were both established by a 1968 Law to protect buyers in off plan developments.

Art. 1. - The developer must guarantee the devolution of the deposited amounts plus 6% of annual interests rates, through an insurance contract or by bank guarantee, for the cases when the construction doesn't start or doesn't finish in the agreed time.They also need to open a special bank account for your amounts (different from the general one of the developer) and have it expressly written in the contract.

Art. 2.- In those contracts where the parties agree on anticipated mounts the developer must expressly state:

a) That the developer will give back to the buyer all the advanced mounts plus the 6%, in cases where the construction fails to start or end within the agreed deadline, or the certificate of habitability is not granted.

b) Reference to the bank guarantee or insurance contract, indicating the name of the Bank or the Insurance Company.

c) Specification of the Bank or financial institution and the account number where the buyer's money is deposited.

At the signing of the contract, the developer will give the buyer the document that contains the guarantee (the Aval or the Insurance contract) and the document must have a reference to the amount that is anticipated.

Art. 3. - If the deadlines for starting or finishing are not met, the buyer can choose between cancelling the contract with the devolution of advanced amounts plus legal annual interests, or to concede a time extension, which will be stated in an additional clause in the contract, specifying the new deadline with the date for finishing the construction and completion.

The insurance contract or the bank guarantee together with the document that fully proves that the work has not been started or that the completion deadline has not been met nor complied, will have executive power as it is stated in the Title XV of Book II of Civil Procedure Law, to demand from the insurance company or the bank, the amounts that the buyer is entitled to, without prejudice of any other given rights also applicable.

Art. 4. Once the Habitation Licenseis issued and the developerproves the delivery of the house to the buyer, the Guarantees granted by Insurance company or guarantoorwill be cancelled.

The First Additional Provision of the General Building Act ( 1999) states:

The receipt of amounts of money on account when building is done by promoters or managers will be covered by an insurance that will compensate the breaching of the contract in an analogous way as what is stated in Law 57/1968 , of the 27th in July, about the receipt of advanced amounts when building and selling houses.That Law, and its complemantary provisions, will be enforced when building houses, with the following modifications:

a. The expressed Law will be enforced for the promotion of every kind of houses, even those made under the regime of community of owners or cooperative association.

b. The guarantee which is stated in the aforementioned Law 57/1968 will be extended to any amount handed in cash or by any effects, which payment will be paid by standing order in the special account which is stated in the refered Law.

c. The guaranteed devolution will include the advanced amounts plus the legal interests of money which are in force till devolution is made.

d. Fines for breaching what is stated in the first paragraph of of the provision number 6 of the mentioned Law, will be imposed by the Autonomous Communities, the fine amount will be , for every contravention, of up to the 25% of the amounts which devolution must be secured or according to whatever is stated in the own regulations of the Autonomous Communities.

HI Maria,

            thank you for the information on the bankers guarantee, we have one from the developer .

Our contract doesn`t state any specific start dates just completion dates which are supposed to be March 2011.Our bankers guarantee states that if the development isn`t finished on time then the developer has to return any monies paid as deposits plus the same again.We know that the development isn`t going ahead as the developer is offering people to transfer their deposits to other developments that he has already completed at a discount, but as we could possibly get double our monies back then were holding out.When would be the date we could start proceedings against the developer with the bankers guarantee and what is the procedure for this.Please could you advise as we have never gone through this before and are unaware of the procedures

            many thanks

       richard

If it makes you feel any better, we have a house (Euromarina) bought in August 2006 and told the completion date would be May 2008.  August 2007 and it was just a concrete base.   November 2007 a concrete base with some concrete pillars. We got some humming and harring about possible delays.  May 2008 all completed and ready to move in.  Excellent job, some minor snagging (well, if you call drilling the kitchen cabinets through the mains water pipe as minor) but all fixed in very short time.

So when they do get on with it, they certainly whang them up fast.  Fingers crossed and hope all goes well.  At least you have the bank guarantee to fall back on.

Hi Richard

we are in the same position as yourselves, except that this is the second time that we have been let down my both proindal and MRI.  We first put a deposit down on a development called Terrazes de Almerimar and 3 months later we were told it was no longer going ahead, then we were offered Portobello and decided to re-invest there.  Obviously we were really disappointed when this development fell through aswell!   I tried contacting various people at MRI for about a month and no-one returned my calls, even my emails were ignored, so when 'Javan Smith' phoned about 3 weeks ago from MRI to tell us about the meeting the following weekend in Bristol we were quite angry at the fact that it had taken so long to hear something from MRI and also annoyed at the short notice, and also that they were expecting us to travel all the way to Bristol and expecting us to take time off work to attend.   In the end we didn't go and we haven't heard anything since!!!   We have also asked our solicitor for our money back as we feel that we are being back into a corner by the developer and after reading reports on this website about alta entinas, although the apartments seemed a bargain there were various reasons why we didn't want to invest there.   Our solicitor has told us that we cannot get our money back until the contract time is up - March 2011.   So at the moment we are in limbo and still very angry and disappointed.   We would be very interested to hear from anyone who did make the Bristol meetings and what the outcome was.   

cheers

Gail 

Grandslam, please have answers below in bold green ( same text as your email): 

            thank you for the information on the bankers guarantee, we have one from the developer .

Our contract doesn`t state any specific start dates just completion dates which are supposed to be March 2011.Our bankers guarantee states that if the development isn`t finished on time then the developer has to return any monies paid as deposits plus the same again.We know that the development isn`t going ahead as the developer is offering people to transfer their deposits to other developments that he has already completed at a discount, but as we could possibly get double our monies back  why double? then were holding out.When would be the date we could start proceedings against the developer with the bankers guarantee and what is the procedure for this. I would need to see the contracts and the offer to swap to a different development. Please could you advise as we have never gone through this before and are unaware of the procedures

            many thanks

       richard

 I would cash in on the bank guarantee unless a very good discount is offerd on another property. 

Michael Davies.

Abogado.

DAVIESOLICITORS

 Dear Grandslam.

To execute they bank guarantee I would suggest using a solicitor.

If you wish to try and save the solicitor fee, the precedure would be as follows: 

Prepare a claim for the bank to pay you your deposits paid  , plus interest.

Go to the bank with your originala bank guarantee and your claim. Take photocopies of both documents. When you get to the bank they could ask to see the oriinal bank guarantee, but you MUST NOT LET THE DOCUMENT OUT OF YOUR OWN HANDS. 

They must stamp an entry stamp on your copies as proof of entry. 

If the bank is correct, they will pay within three to four weeks. Most banks though wil try and cause you as much grief as possible. The first thing they will do is call the builder who in turn will call you to try and get you to withdraw your claim. 

If you have not receive the money after three weeks, we recommend orgaisin a requerimiento notaria via a local notary. I.e. you ge the notary to present himself at the notary with yourself with and theoriginal bank guarantee demanding payment on the spot. 

At this point the bank would be crazy if they did not pay. 

If they do not you should put a complaint in writing to the bank of Spain. 

These are the steps. The last one would be to sue the bank, but it would not be normal for the bank to not pay out. 

As more and more coompanies go under and the banks in turn get into more trouble bank will in general become slower in paying out the BG.  but in genear should pay. 

You can do all this yourself except for suing, but I personally think that the chances of success will increase if you use a solicitor acustomed to these claims. 

Michael Davies. 

Abogado. 

DAVIESSOLICITORS. 

Offices: Mojacar and Almeria. 

Dear colleague:

AS a comment to your statement:

"The last one would be to sue the bank, but it would not be normal for the bank to not pay out"

I need to say that we are finding that the majority of the Banks prefer to go to the judicial stage, maybe just to the beginnings in order to see if you are serious in your claim but... yes, many of them just do not pay upfront.

Maria

Maria wrote

''I need to say that we are finding that the majority of the Banks prefer to go to the judicial stage, maybe just to the beginnings in order to see if you are serious''

grandslam

Maria's statement above shows just how 'wrong' the whole justice system in Spain, when you might well have to sue a bank to force them to pay out on their own guarantee!!!!!!.   What can you say?, it's a bloody farce once again. You follow the rules and still have to climb through hoops in Spain, just to back what is rightfully yours.

Good luck with it all anyway. I would advise anyone not to touch off-plan in Spain with a bargepole. I would try very hard to get your money back ASAP, and using a good lawyer, buy somewhere built that you can bargain hard on.  I have found that  with off-plan, the  common sense regulations to protect you against sharks, just aren't in place, whatever you are told, and you are left vulnerable to anyone who wants to cheat you, with a long and costly court case often being the only answer, with no guarantee of a win. Even if you do win, there's a fair chance the delay will have meant the agent/lawyer/developer may well have gone bust, leaving you with nothing anyway? It's a dreadful system that needs changing fast!

 Dear Maria. 

Regarding Bank guarantees. 

We have cashed  in many bank guarantees. 

I am surprised when you say that the norm is fo rthe banks not to pay out on a bank guarantee forcing you to go to court. (this could lead peple not to attempt to cash their BG. putting them inj danger of loosing their money)

If the bank guarantee is correctly written, and their is a clear breach of contract by the builder , the banks DO PAY . 

We have presentd exectuion of bank guaranteed amongt others against Bankinter, Banco Popular, Banco de Andalucia, Cajamurcia ,Banco de Valencia, CAM bank  CAJA MADRID etc.  THEY ALL PAID. 

All these banks mentioned above have paid out on bank guarantees executed by us (wihtought going to court)

They do need to  be pushed , and the correct point of  pressure needs to be  aplied, but if the builder is in clear breach of contract the bank guarantee is correctly written, and is not out of date (many bank guarantee state they are not valid after a certain date/the legalitie of this clause is not clear, but banks will not pay out if exectured after this date) the BG can be cashed. 

It is very possible that if a buyer tries to do it on his own, he mignt be messed around, but a bank will not unlawfully refuse  pay out on a bang guarantee (which is a binding document for them ) unless they have at least one legal leg to stand  on (i.e. BG out of date, the breach of contract by the builder is not serious enough ).

We have come across one bank (the exception to the rule) that will not pay if the Builder is allready in concurso de acreedores , as they feel it could cause them problem with the administrador concursal. This particular case was sorted out joining the concurso and prsenting an incidente judicial.

IF PEOPLE HAVE BANK GUARANTEES THEY MUST BE CAREFULL THAT THEY DO NOT ELAPSE. 

If the BG  does not mention their obligation to pay interest, in a couple of cases they have refused to pay this interest. 

I am convinced that if I whent to court I would win in relation to teh interest, but in both cases my clients did not wish to persue it further. 

I am sure you must have examples of cases in which the bank has not paid, but their refusal to pay I am sure will have a reason atttached.  i.e They consider their is not a breach of the builder contract yet, the BG. has elapsed  etc. If the BG is correct , the breach is clear (for example non completion 6 months after the completion date),  and the execution has been presented in form I find it difficult to understand how the bank  can not pay. 

We have executed no less than 70 BG.s and all but one where paid . I only have one case at the monent in which the bank has not paid when I consider they should , which is with BANCO de VALENCIA, who has refused to pay the bank guarantee while  the building company is in concurso until the judge handling the concurso tells him to do so. I could achieve this with an incidente judicial at the CONCURSO, but up to now we have not done this. But thi is just the exception to the rule. 

Havingn said all the above, I can agree that most of the buyers out thier do not have BG. and that many who have have let them elapse. The bank will also normally play games and call the builder , so that he in turn can call the client to try and convince him/her to pull back the request of payment of the BG. (they do this, because the bank knows that if all is presented correctly they will not be able to escapte payment , and that they in turn will then have to turn to the builder to get theri money back after paying th client. 

........or there could be a generic transparent legal BG that all banks and all parties have to strictly adhere to, with harsh penalties for any delay on implementing the BG as soon as the developer fails to meet transparent contract details!

yeah I know........dream on!

Daviessolicitors:

I do congratulate you for the suceess on having Banks honouring Bank Guarantees , but I congratulate you most on finding Bank Guarantees without expiration deadlines on them. Certainly unique!

I wish you to keep having that wonderful luck... we need to resort to hard and deep study to overcome strong illegalities by Banks.

Best regards,

Maria

Michael davies wrote "...If the bank is correct, they will pay within three to four weeks..."

So why, having been to court and the Judge ruling that the original amount plus costs plus interest should be paid and then after the bank not paying ruling that assets should be seized to cover the amount, are we still waiting for our money with no end in site 1 year on from executing the bank guarantee???

Kel

kelju

because the system stinks?   We know that, but how the hell do we get those who can change it to do so? I think there should be EU intervention if Spain can't get it's house in order on this and several other property issues that are clearly wrong.

goodstich44

I agree that the system stinks and also agree with the 2 lawyers that it should be simplicity itself to exercise a Bank Guarantee if the conditions are met.

What makes me angry are the glib remarks "it should only take 2 to 3 weeks" when everyone on here knows full well that this is not happening, it gives the impression that some Lawyers are able to achieve what others cannot. Patting each other on the back and offering congratulations does nothing for the situation.

I was promised monthly updates from my Lawyer but find that I get an update only when I ask and then al I get is "We are waiting for information from the court and do not know when things will happen".

What I would like to see is some hard evidence of how courts - banks - developers or anyone else involved in the process are being pursued by the Lawyers who act on our behalf.  Sitting back and waiting for things to happen does not achieve results, I do not care that this is the way that the courts operate, I have found from experience that continually asking a question or building a working relationship with a key person usually gets results. 

So come on Lawyers, tell us what you are doing to bring about a change, but more importantly COMMUNICATE WITH YOUR CLIENTS.

Rant over

Kel

kelju

yes, indeed. I feel that even some good lawyers in Spain are very wary of rocking the boat when it comes to judges decisions. It seems that decisions are sometimes made by a judge depending on how they they feel on the day or how they feel about the people in the situation, rather than right or wrong?. 

Wouldn't it be great to get regular updates without having to feel like you are hassling your lawyer.  Wait-wait-wait, is what we keep hearing, and it's just not good enough or remotely fair.  I really don't if the lawyers can do much more or if that's just the way it is in Spain, but it's wrong whatever the country.

I find from reading these threads and also in my own case when you tell your lawyer you want to pull out due to your property not being compleated on time they tend to go after the builder.Ibelieve this seems to be the slowest way of doing things and also seems to give the builder months and months in which to drag out any claim.Most lawyers say you get more compensation by doing this and they are doing whats best for you,but these cases always seem to have to go to court..I think they do not execute the bank guarantees unless you really insist or go to a lawyer who  is working solely for you.

So it would seem to always go for the bank guarantee and not let your lawyers draw you into a long drawn out fight with the developer which is only good for there pockets not yours  

I also find it strange that when there is critcism of a Lawyers actions on any of these threads they tend to ignore the comments and dissappear.

Is there a filter on the automatic email to inform of an update to the post?

Does it only inform the Lawyers when comments are good?

Just a thought